Supreme Court won’t hear transgender bathroom case
Authored By Lydia Wheeler – 03/06/17 09:41 AM EST
The Supreme Court on Monday declined to hear a high-profile case on transgender rights, sending it back to the lower courts. The justices tossed out a ruling Monday that allowed Gavin Grimm, a transgender boy in Virginia, to use the bathroom he chooses, and ordered that a lower court reconsider the case in light of new guidance issued by the Trump administration last month.
The justices had planned to hear arguments later this month and both sides had pressed for the high court to weigh in amid a national debate over rights for the transgendered.
Grimm, born female, was barred from using the boy’s bathroom in 2014 after the Gloucester County School Board enacted a policy requiring all students to use the bathroom that corresponds with the gender assigned at birth. The 4th Circuit Court of Appeals sided with Grimm, who argued that the school board “impermissibly discriminated against him” in violation of Title IX anti-discrimination laws and his constitutional right to equal protection under the law. The court cited Obama administration guidance that transgender students should be allowed to use the bathrooms corresponding to their gender identity, claiming those rights were covered federal anti-discrimination laws addressing “sex.”
But on Feb. 22, the Trump Justice Department and Education Department sent a letter to the lower court rescinding that Obama guidance.
The fight now returns to the lower court, where both sides vowed to press forward with their case.
“On remand to the lower courts, the Board looks forward to explaining why its commonsense restroom and locker room policy is legal under the Constitution and federal law,” the Gloucester County School Board said in a statement. LGBTQ advocates expressed disappointment in the justices’ decision.
“This announcement speaks volumes to the ways that President Trump’s actions are already having devastating consequences for transgender youth across the country,” said Freedom for All Americans Executive Director Matt McTighe, in a statement.
“All students, including transgender students, deserve to participate fully and succeed in school, and to feel safe and respected while doing so.”
At issue is whether Title IX’s anti-discrimination measures can force schools to allow transgender students to use the bathroom of their choice. The Obama guidance said it did. The Trump administration in withdrawing that guidance said the Obama administration failed to “explain how the position is consistent with the express language of Title IX,” but didn’t make their own case for whether Title IX applies. Legal experts say it’s unclear what the Fourth Circuit will do.
“It could ask for more briefing, it could send it back to the district judge to rule on the merits and then let it come back up,” said Carl Tobias, a professor at the University of Richmond School of Law.
“It could also wait and see what DOJ and DOE [Department of Education] are planning on doing or it could just go forward and reach the merits under Title IX and try to discern the legislative intent from 1972.”
In a statement, Mark Phillis, a discrimination and harassment lawyer at Littler Mendelson P.C., said there are two cases pending before the Second Circuit and Seventh Circuit Courts in which the interpretation of “sex” is being considered in the employment context under Title VII of the Civil Rights Act.
“Since Title IX cases often look to cases decided under Title VII, these cases could have an impact on the way the this case may be decided,” he said.
Legal experts say that the issue could eventually end up back before the Supreme Court, with other cases also making their way through the courts.
“No question about it,” Tobias said. “It’s just a matter of which case is the right case.”
He said Grimm’s case was premature. “The district court never reached the merits,” he said. “I don’t know why they granted cert.”
The American Civil Liberties Union (ACLU), which brought the case forward on Grimm’s behalf, told the justices on March 1 that the Trump administration’s actions made it critical for the high court to quickly resolve the question of transgender students and bathrooms.
“[T]he Court will inevitably have to settle the question by clarifying the proper interpretation of Title IX,” the group said.
–This report was updated at 3:04 p.m.
We all know about 
The Last Refuge
A major new report, published today in the journal The New Atlantis, challenges the leading narratives that the media has pushed regarding sexual orientation and gender identity.
Co-authored by two of the nation’s leading scholars on mental health and sexuality, the 143-page report discusses over 200 peer-reviewed studies in the biological, psychological, and social sciences, painstakingly documenting what scientific research shows and does not show about sexuality and gender.
The major takeaway, as the editor of the journal explains, is that “some of the most frequently heard claims about sexuality and gender are not supported by scientific evidence.”
Here are four of the report’s most important conclusions:
The report, “Sexuality and Gender: Findings from the Biological, Psychological, and Social Sciences,” is co-authored by Dr. Lawrence Mayer and Dr. Paul McHugh. Mayer is a scholar-in-residence in the Department of Psychiatry at Johns Hopkins University and a professor of statistics and biostatistics at Arizona State University.
McHugh, whom the editor of The New Atlantis describes as “arguably the most important American psychiatrist of the last half-century,” is a professor of psychiatry and behavioral sciences at the Johns Hopkins University School of Medicine and was for 25 years the psychiatrist-in-chief at the Johns Hopkins Hospital. It was during his tenure as psychiatrist-in-chief at Johns Hopkins that he put an end to sex reassignment surgery there, after a study launched at Hopkins revealed that it didn’t have the benefits for which doctors and patients had long hoped.
Implications for Policy
The report focuses exclusively on what scientific research shows and does not show. But this science can have implications for public policy.
Take, for example, our nation’s recent debates over transgender policies in schools. One of the consistent themes of the report is that science does not support the claim that “gender identity” is a fixed property independent of biological sex, but rather that a combination of biological, environmental, and experiential factors likely shape how individuals experience and express themselves when it comes to sex and gender.
The report also discusses the reality of neuroplasticity: that all of our brains can and do change throughout our lives (especially, but not only, in childhood) in response to our behavior and experiences. These changes in the brain can, in turn, influence future behavior.
This provides more reason for concern over the Obama administration’s recent transgender school policies. Beyond the privacy and safety concerns, there is thus also the potential that such policies will result in prolonged identification as transgender for students who otherwise would have naturally grown out of it.
The report reviews rigorous research showing that “only a minority of children who experience cross-gender identification will continue to do so into adolescence or adulthood.” Policymakers should be concerned with how misguided school policies might encourage students to identify as girls when they are boys, and vice versa, and might result in prolonged difficulties. As the report notes, “There is no evidence that all children who express gender-atypical thoughts or behavior should be encouraged to become transgender.” (If the image below does not play, please proceed to https://youtu.be/O9RE_VD1nf8)
Beyond school policies, the report raises concerns about proposed medical intervention in children. Mayer and McHugh write: “We are disturbed and alarmed by the severity and irreversibility of some interventions being publicly discussed and employed for children.”
They continue: “We are concerned by the increasing tendency toward encouraging children with gender identity issues to transition to their preferred gender through medical and then surgical procedures.” But as they note, “There is little scientific evidence for the therapeutic value of interventions that delay puberty or modify the secondary sex characteristics of adolescents.”
Findings on Transgender Issues
The same goes for social or surgical gender transitions in general. Mayer and McHugh note that the “scientific evidence summarized suggests we take a skeptical view toward the claim that sex reassignment procedures provide the hoped for benefits or resolve the underlying issues that contribute to elevated mental health risks among the transgender population.” Even after sex reassignment surgery, patients with gender dysphoria still experience poor outcomes:
Mayer and McHugh urge researchers and physicians to work to better “understand whatever factors may contribute to the high rates of suicide and other psychological and behavioral health problems among the transgender population, and to think more clearly about the treatment options that are available.” They continue:
Policymakers should take these findings very seriously. For example, the Obama administration recently finalized a new Department of Health and Human Services mandate that requires all health insurance plans under Obamacare to cover sex reassignment treatments and all relevant physicians to perform them. The regulations will force many physicians, hospitals, and other health care providers to participate in sex reassignment surgeries and treatments, even if doing so violates their moral and religious beliefs or their best medical judgment.
Rather than respect the diversity of opinions on sensitive and controversial health care issues, the regulations endorse and enforce one highly contested and scientifically unsupported view. As Mayer and McHugh urge, more research is needed, and physicians need to be free to practice the best medicine.
Stigma, Prejudice Don’t Explain Tragic Outcomes
The report also highlights that people who identify as LGBT face higher risks of adverse physical and mental health outcomes, such as “depression, anxiety, substance abuse, and most alarmingly, suicide.” The report summarizes some of those findings:
What accounts for these tragic outcomes? Mayer and McHugh investigate the leading theory—the “social stress model”—which proposes that “stressors like stigma and prejudice account for much of the additional suffering observed in these subpopulations.”
But they argue that the evidence suggests that this theory “does not seem to offer a complete explanation for the disparities in the outcomes.” It appears that social stigma and stress alone cannot account for the poor physical and mental health outcomes that LGBT-identified people face.
As a result, they conclude that “More research is needed to uncover the causes of the increased rates of mental health problems in the LGBT subpopulations.” And they call on all of us work to “alleviate suffering and promote human health and flourishing.”
Findings Contradict Claims in Supreme Court’s Gay Marriage Ruling
Finally, the report notes that scientific evidence does not support the claim that people are “born that way” with respect to sexual orientation. The narrative pushed by Lady Gaga and others is not supported by the science. A combination of biological, environmental, and experiential factors likely account for an individual’s sexual attractions, desires, and identity, and “there are no compelling causal biological explanations for human sexual orientation.”
Furthermore, the scientific research shows that sexual orientation is more fluid than the media suggests. The report notes that “Longitudinal studies of adolescents suggest that sexual orientation may be quite fluid over the life course for some people, with one study estimating that as many as 80 percent of male adolescents who report same-sex attractions no longer do so as adults.”
These findings—that scientific research does not support the claim that sexual orientation is innate and immutable—directly contradict claims made by Supreme Court Justice Anthony Kennedy in last year’s Obergefell ruling. Kennedy wrote, “their immutable nature dictates that same-sex marriage is their only real path to this profound commitment” and “in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”
But the science does not show this.
While the marriage debate was about the nature of what marriage is, incorrect scientific claims about sexual orientation were consistently used in the campaign to redefine marriage.
In the end, Mayer and McHugh observe that much about sexuality and gender remains unknown. They call for honest, rigorous, and dispassionate research to help better inform public discourse and, more importantly, sound medical practice.
As this research continues, it’s important that public policy not declare scientific debates over, or rush to legally enforce and impose contested scientific theories. As Mayer and McHugh note, “Everyone—scientists and physicians, parents and teachers, lawmakers and activists—deserves access to accurate information about sexual orientation and gender identity.”
We all must work to foster a culture where such information can be rigorously pursued and everyone—whatever their convictions, and whatever their personal situation—is treated with the civility, respect, and generosity that each of us deserves.